Yes, Virginia, judges do read those law reviews, after all

Much of the attack on law schools over the last few years has focused on the alleged irrelevance of legal scholarship. At times the level of rhetoric has been so intense one feels as if the “anti-intellectualism in American life” so eloquently described fifty years ago by Richard Hofstadter has once again raised its ugly head. Things are not helped when prominent jurists like Chief Justice Roberts pile on.

Research is a tough road, good questions are hard to specify and methodology can be challenging to develop. It is hard enough when one is dealing with the physical world so imagine trying to fashion a reliable scientific method for the constantly shifting social world.

In response to this challenge, legal academia has over the last few decades gone down two separate roads, one that can largely be characterized as quantitative and the other as qualitative. Both have their advantages and limitations.

Fortunately, legal academia enjoys one distinct advantage: peer review is largely absent and so the heavy reliance on “prestige” journals has not stifled innovation. Law school publishing is in many ways an analog precursor of the open source world. Much work that is not all that good gets published but the very best can rise to the top. And there are often nuggets of value even in work that is not terribly important – and that’s where databases like Lexis become invaluable.

Arguably, law and social science are ahead of the physical sciences in this game having supported the creation of new online sites like the Social Science Research Network. Paul Krugman, a Nobel prize winning economist, weighed in recently in favor of the online world.

Of course, many deride the lack of peer review as a serious problem and point to the demanding review process of the world of physical science. But it turns out that the way good work gets done in legal academia is not far from what happens in the physical or other social sciences (I speak with some exposure to both arenas as I am married to a physical scientist, am cross trained in political science and have been working closely with an economist for several years).

And it turns out that within the world of physical science there is a concern, expressed most recently by this year’s Nobel Prize winner in Medicine, cell biologist Randy Schekman, that the traditional system has rewarded too highly publication in certain “luxury” journals in a manner that, in today’s online world, stifles innovative work.

Michael Jensen, a founder and Chairman of SSRN, tells me he “share[s] Schekman’s views completely….I am committed to changing this crazy system that we have backed into.”

And SSRN Managing Director Bernard Black of Northwestern Law School and the Kellogg School of Management emailed me the following comment:

“SSRN doesn’t solve the problem, but it helps. In areas where posting working papers in SSRN is the norm, a near-final working paper provides a respectable substitute. I’m also involved right now in launching a new peer-reviewed Journal of Law, Finance, and Accounting, where the business model contemplates that submitted papers will remain available on SSRN from submission through publication, and will automatically be replaced with the true final version 6 months after publication. Unfortunately, there are areas – including health care and medicine — where the idea of publishing a ‘working paper’ online remains verboten.”

The so-called “luxury” hard science journals (Schekman points to Cell, Science and Nature, in particular) are loath to have work they want to publish subject to any criticism prior to publication that an open system like SSRN might entail. This is the kind of problem Schekman wants to take on because of the fear that the current system stifles innovative thinking in the hard sciences.

(This only underscores the inexplicable and reactionary effort underway in Kansas to stifle academic freedom through the suppression of the use of online media as explained by legal scholar and economist Bill Black here, here and here and as explored by me here. Update: There is some indication now that the KU Regents may back down.)

In other words, just as the law school critics have opened up two barrels on allegedly weak academic work in the world of law schools, that world has already incorporated a form of review akin to so-called “hard” science, while the world of “hard” science is developing models that take advantage of what Schekman calls the “new breed of open-access journals that are free for anybody to read.”

While it is conceivable that a law professor may write something and send it out for possible publication without any input from his or her peers, that is often the exception and it certainly rarely happens with very good work that ends up in the most widely followed journals. Instead, papers often go from proposal or rough draft to working draft, to a seminar paper or workshop presentation, then on to conference(s) to posting online for more comments and then, finally, perhaps, submitted for publication in a law review or formally peer reviewed journals. The result is, in fact, a process not dissimilar from that of traditional peer review in other disciplines.

Of course the thoroughness of the process that legal scholars rely on is widely ignored by the law school critics who blithely assume they can better understand the academic work process than those who specialize in it. While, as I explain below, they typically concentrate their attacks on the work of conceptual or qualitative scholars – naively assuming they can more easily pick such work apart – they also have recently attempted to undermine quantitative work as well. The results have not been pretty. In the case of their attacks on the JD earnings premium study by Professors Simkovic and McIntyre the result was downright embarrassing.

As Professor Leiter explained yesterday the critics’ leading advocate, a tenured law professor himself, may have finally jumped the shark when he openly admitted at the conclusion of his specious attack on a fellow academic that his own credentials “don’t actually have much if anything to do with either carrying out serious academic work or training people to practice law.”

One of the arguments of the critics, of course, is that it is the qualitative or conceptual work that is weakest and least relevant to the actual practice of law.  Recently, the critics (who move like a swarm of locusts, first alighting on one target, then another) have made the object of their screeching concern an article by a rising star in legal academia, Professor Nancy Leong, of the University of Denver. Professor Leong visited at UCLA this Fall term even though she has yet to be tenured at Denver (a strong sign of the wider academy’s interest in her work). For those catching up, Brian Leiter summarizes the core of the atrocious attack on her here.

Much, even most, of the criticism of her work, and, sadly, of her personally, has gone way beyond what is appropriate or even civil, apparently because the critics have decided one of her (several) major articles, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (64 Fla. L. Rev. 305) (and available on SSRN here and first “published” as a University of Denver working paper), should be made a kind of poster child for everything that is wrong about legal scholarship. (One bright bulb in the locust crowd actually wrote about Professor Leong: “She is the perfect poster child for what is wrong with legal education in this country.”) A central claim of the critics is that legal scholarship is irrelevant to the actual practice of law and that law professors are featherbedding bums who fit the old canard, “those who can’t, teach.”

How timely, then, it is that a federal circuit court judge recently placed the “Open Road” article at the heart of his opinion in United States v. Mubdi, 691 F. 3d 334 (CA4 2012).

In his partial concurrence with the majority, Judge Davis opens his opinion with a quote from “Open Road” and then in the body of his opinion again quotes extensively from the piece, calling it a “cogent summary of the evolved legal regime” with respect to racial profiling and traffic stops. And then once more relies on Professor Leong for her “correct” observation that “close calls always seem to go to law enforcement.”

Ironically, some of the very phrases cherry picked by the law school critics to undergird their view that Professor Leong was simply engaged in navel-gazing in “Open Road” were the ones relied on by Judge Davis in his opinion.

Granted, Judge Davis himself spent three years as a law professor and so may be more open to the potential value of legal scholarship than those members of the judiciary with more limited backgrounds. And granted, as this is only one example, law faculty might be able to think more carefully about ways to assist the bar and judiciary think through complex social and legal problems with good scholarship.

But it has to be noted that the very article used to ridicule an entire academic discipline for its allegedly weak connection to live legal issues turns out to be at the heart of a federal appellate court opinion about a very live legal issue, indeed.

I recall the poignant moment in a large class of mine a few years ago when one of my students approached me after class to explain why she was late – despite being well within the speed limit, she had been pulled over by a police officer while on her way to campus for a “DWB” infraction – “driving while black.”

No wonder, then, that Judge Davis quotes Professor Leong when she concludes:

“Thus, even an officer with no actual purpose other than to harass and annoy may—according to the Supreme Court—use a traffic stop as an entirely constitutional starting point for such actions, as long as an objectively reasonable evaluation would conclude that the officer had probable cause to believe that a traffic violation occurred at the time she made the stop.”

It is, in fact, hard to find a more compelling and relevant piece of scholarship than this piece by Professor Leong and yet this eludes practically the entire corpus of law school critics. When one sees such a radical disconnect in the locusts’ argument, it has to make one wonder about the integrity and common sense of the critics themselves.